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both islands into substantial harmony, or in preserving that harmony when created. Instead of this, under our present system of legislation, the laws of Ireland and England are more widely different now than they were at the date of the Union: instead of legislation for the two parts of the country being, as it ought to be, always simultaneous and ordinarily identical, the practice of separate legislation, even when no diversity is intended, has become almost inveterate.
There is, it is to be observed, no question as to the desirability of identity of legislation for the two countries in matters common to both—thereon opinion is unanimousbut when the time for legislation arrives this opinion is not acted on. Separate legislation ensues. Then years afterwards, under the pressure of necessity, a spasmodic effort is made, and the differences, which ought never to have arisen, are more or less imperfectly removed. But there is no recognition of the fact that the unity which it was desirable to attain had been attained, and therefore should not again be lost—there is no guarantee afforded that once assimilated the laws shall remain similar—and so every now and then the vicious circle is once more entered on. I can find no argument in favour of such a state of things. No good end can be attained, no object realized, by needlessly perpetuating old differences, still less by needlessly creating new ones. Separate legislation increases the labours and unnecessarily occupies the time of Parliament. It precludes English members from taking due interest in Irish affairs; it keeps alive a false impression of the existence of separate interests; and what is to be above all things noticed is that it can lead to no definite end.
I cannot more forcibly illustrate the working of the present system of separate legislation than by reference to the great attempt at Codification already mentioned. It is a Bill of unusual magnitude. It repeals the whole of the present statute law on the subject of indictable offences, and attempts, or at any rate professes, to substitute a Code in the place of the present law, both statute and common law, in regard to the subject. It deals with offences against public order, internal and external; with acts injurious to the public generally; with offences against the person, the conjugal and parental rights, and the reputation of individuals. It introduces new principles of law in some of these matters. The measure, however, is confined to England. Ireland is excluded from its operation; and so, if it should be passed, the laws of England and Ireland in all these numerous subjects—laws which, afteryears of labour and numerous Acts of Parliament, are now almost, if not quite, identical—will once more be dissimilar. Years hence, possibly, a similar measure will be passed for Ireland; but in the intervening years the laws will be dissimilar, and even if the experiment succeeds there will be an Irish Code and an English Code, which will be certain not to be identical even when not substantially different, and the golden opportunity will have been lost for enunciating the law in a form not exclusively English or exclusively Irish, but common to both countries.
I would, did time permit, pursue this subject in some detail, but I must confine myself to one other illustration of the matter which seems to me of capital importance. Next to the Criminal Law there is, perhaps, no subject so entirely common to the whole Kingdom, or in which there is less reason for divergence of legislation, than the laws relating to the relief of the poor: and yet there is, perhaps, none in which the divergences are more striking or inconvenient. The English law is still based upon the old style of settlement enforced by removal——which has been rightly described as “a harsh, complicated, and expensive machinery for enforcing the chargeability of districts to support their own poor.” In Scotland this chargeability is enforced, without removal, by an action by the relieving parish against the
chargeable parish to recover the cost of relief, when both parishes are in Scotland, but if one of them should happen to be in England or Ireland, this remedy cannot be resorted to, and the only way of enforcing chargeability is by removing the pauper. In Ireland, the Law of Settlement and removal is wholly unknown, and the pauper remains aicharge upon the Union where he happens to become destitute, there being no power of removal except in the case of paupers previously removed from Great Britain. None of the systems is a good one, but a very reasonable system might be" readily compounded out of the best parts of the three, if our system of separate legislation did not practically preclude anything like combined action for the purpose.
Passing now to a brief consideration of a totally different question, I desire your attention for a few moments to that which I cannot but consider the most “burning” question of the day,—-—and that notwithstanding the adverse opinion not long since expressed by the high authority of a Royal Commission,—I mean the law affecting the custody and control of lunatics.
The same principles which lead us to provide, at the cost of the State, for those who are unable by reason of poverty to support themselves, lead even more irresistibly to the public guardianship of those who from mental infirmity are unable to take care of their persons or their property. But just as it is an essential characteristic of a good poor law to interfere with the normal conditions of the pauper so far, and so far only, as is necessary to guard the administration of the public alms from extravagance or abuse, so it is essential to a good lunacy law that its operation, both as to the persons to be affected, and as to the amount of restraint to be enforced thereby, should be as restricted as is compatible with proper care of the lunatics themselves, and due protection of others from the results of their infirmity. So long as these conditions are fulfilled the action of the law should be sedulously maintained at a minimum. Hence it follows that the two cardinal principles of a good lunacy law should be—
1. To secure that no one should be liable to be treated as a lunatic without the most searching inquiry, conducted in public, and by a competent judical ofiicer, so as to preclude, as far as may be, the possibility of fraud, accident, or mistake.
2. So to provide for the control of lunatics as to interfere as little as may be with the free exercise of their natural liberty.
These principles are, indeed, so far recognised by our law as it stands, as to be, with one important exception, fairly applied to the class known as “Chancery Lunatics”—— lunatics, that is to say, who are possessed of property sufficient for their own support, and the administration of whose property is undertaken by the Crown through the agency of the Lunacy Office. As a rule adequate care is taken in determining the status of these persons, and their property is ordinarily managed with an anxious care to provide first for their own comfort, according to their means and station in life, and then from those legally or naturally dependent upon them, or who may be considered as having such moral claims to assistance as a reasonable man in a lunatic’s position would be tolerably certain to recognise.
The exception, which Imerely mention at the moment, as I shall have to recur to the subject at some length, is this: that whether from a mistaken delicacy of feeling toward the alleged lunatic himself or his friends, or from false motives of economy, the inquiry into the mental condition of an alleged lunatic may be, and, unless he has the advantage of independent legal advice, ordinarily will be, conducted in private, often even with studied secrecy. Indeed I have heard this practice claimed as a merit in the Lunacy Office, instead of being recognised, as I think it
ought to be, as a serious blot upon its procedure. But when we come to those lunatics—by far the larger number—who either have no property, or whose cases have not been brought under the cognisance of the Masters in Lunacy, the law is not content with ignoring the principles above enunciated, it even acts in the precisely contrary direction. It assumes that the normal result of lunacy is to be incarceration, and it entrusts the conduct of the inquiry, which may have so terrible a result, not to an impartial public officer, but to the nearest relative of the victim——to the very man, that is, who may have the strongest imaginable motives for desiring to control the result. And, worse than all, it enables this inquiry to be so held as to be reduced to the merest farce. Two medical men, neither of whom need be, or ordinarily is, possessed of any special acquaintance with the subject of mental phenomena, have separate interviews with the victim, whom they may, and often do, then meet for the first time in their lives: they come, or may come, to this interview, carefully primed as to the “delusions" to which the “ patient” is subject, and their instructor must be a bungler indeed, or the case an extraordinarily hopeless one, if sufficient cannot be elicited from some peculiarity of temper or manner to justify, or seem to justify, the foregone conclusion desired. In accordance with this conclusion, a certificate is then signed, which suffices to warrant the forcible arrest of the victim and his removal to a house of detention (called a private asylum), from which his chances of liberation are in inverse proportion to the truth of the accusation—for such it is in effect— against him. A really insane man may have some hope of being released, and placed under rational control; but only by a combination of favourable circumstances little short of miraculous can the sane victim of avarice or malevolence hope, under present regulations, to baffle the interested vigilance with which his jailors set themselves to defy investigation. Now, I do not hesitate to say, that under no posssible circumstances can these so-called private asylums be otherwise than an evil. I do